On Friday, the Supreme Court finally heard opening arguments concerning the constitutionality of President Joe Biden’s federal vaccine mandates. Those mandates apply to all employers with more than 100 employees and all healthcare workers at facilities that receive Medicare and Medicaid funding.
Although it is not a fait accompli that the conservative-leaning Supreme Court will strike down both of Biden’s vaccine mandates, it seems that this is the most likely outcome.
Regarding the first mandate before the court, Biden’s federal vaccine mandate for large employers courtesy of the Occupational Safety and Health Administration, Chief Justice John Roberts struck a skeptical tone. While questioning Solicitor General Elizabeth Prelogar, arguing on behalf of the Biden administration, Roberts took aim at whether or not OSHA has the legal merit to mandate vaccines.
Specifically, Roberts referred to the 1970 law that created OSHA, saying: “That was 50 years ago that you’re saying Congress acted. I don’t think it had COVID in mind. That was almost closer to the Spanish flu than it is to today’s problem.”
On this point, Roberts is spot on. Nowhere in the 1970 charter for OSHA does anything remotely appear that the agency would be tasked with mandating vaccines for large employers. In fact, OSHA was generally created to avoid workplace accidents and unsafe conditions, not to micromanage the very personal healthcare decisions of 80 million workers.
Moreover, Roberts asked Prelogar, “Why doesn’t Congress have a say in this … and why isn’t this the primary responsibility of the states?” This sentiment was seconded by Justices Neil Gorsuch and Brett Kavanaugh.
While it is too early to tell, it at least appears that the Supreme Court very well could strike down OSHA’s vaccine mandate for employers with 100 or more employees.
Concerning the Biden administration’s mandate for healthcare workers at facilities participating in Medicaid and Medicare, the court also appears to be leaning toward striking it down. This mandate, initiated by the Centers for Medicare and Medicaid Services, also received skeptical questions and statements from several justices.
For instance, Gorsuch said, CMS “cannot use the money as a weapon to control these things.” Justice Amy Coney Barrett also chimed in with a doubting question, “What if I think some of the provisions might support you but others don’t?”
Although liberal-leaning Justices Sonia Sotomayor, Elena Kagan, and Stephen Breyer appear to be in line with both vaccine mandates, the current makeup of the court, which skews toward the conservative side 6-3, appears to foreshadow that both vaccine mandates could be on the chopping block.
This is encouraging for those who believe in the Constitution as well as the principles of limited government, federalism, personal freedom, and bodily autonomy. After decades of watching the Supreme Court expand the power of the federal government, perhaps we are now embarking upon a new era in which the legislative branch will regain and reassert its proper role as a much-needed check on a power-hungry executive branch.
Chris Talgo ([email protected]) is a senior editor at the Heartland Institute.
